Monday, December 16, 2019

Amended Tribal Land Act will make developments very expensive

The upside is that the new Tribal Land Act will make land in rural areas more valuable than it currently is. That upside will be a downside for the government which will have to pay much more than it currently does in order to acquire land for infrastructural development projects. The old law merely said that tribal land could be reclaimed from its occupants and that such occupants shall be entitled to “adequate compensation from the state” for “the value of any improvements effected to such land.” As used, “value” was not helpful for purposes of putting a price tag on the land that the government wanted to repossess.

In the case of land, “value” can relate to such things as social value, market value or replacement value. The new law is much more precise because Section 32 specifically says that occupants will be compensated for the “market value of the property at the date of service of the notice to vacate the land.” The complication that market value creates for the government is that whereas in the past, the government would have to merely pay replacement value to reclaim tribal land, that will no longer be possible. Market value is typically way higher than replacement value and so the government is going to pay out a lot more money than has been the case. One scenario to consider here is of someone who gains access to highly confidential information about a project planned for a particular area. This person then buys up and develops land in the area and waits for the government to formally announce its infrastructure development plans. Such land speculation has been known to criminally occur and the government has had to shell out a lot of money in compensation. The figures will go higher.

A real estate expert who requested anonymity to preserve good relations with the government, says that as a result of the new law, infrastructural development projects undertaken by the government will become prohibitively expensive in the future. Beyond being prohibitive, there will be some absurdity to the cost element because while the government allocates tribal land for free, it will have to pay exorbitant market rates to reclaim that same land. When power changes hands, the incoming government will also find itself hamstrung by the new law. Ahead of the 2014 general election, the Umbrella for Democratic Change (UDC) published a manifesto in which it laid out an ambitious human resettlement and infrastructure development plan. Noting the acute land shortage in urban centres, the party said that in the event it assumes official power, it will introduce “new mechanisms and instruments” to correct this anomaly. One such will be “a more comprehensive purchasing of land around urban centres, for servicing and re-distribution to make available for the tens of thousands of ordinary citizens.” Under the old Tribal Land Act, the UDC government would have to pay replacement value but the new one will compel it to buy such land at market value. The party will also have to pay much more when it implements its “sky-is-the-limit” infrastructure expansion plan.

Among others, the plan includes fixing and expanding the north-south water carrier, generating an additional 1000 megawatts of power, developing additional water capacity to support agriculture/mining, dual carriage for the A1 highway, servicing more land as well as building green parks, overhead bridges, a rail track to Kasane, a bridge across the Chobe River and rail ring for tourism through parts of the central Kgalagardi, connecting to the rail to Namibia, “smart and cost effective” irrigation infrastructure to the fertile lands of Pandamatenga, Barolong Farms and other key agricultural nodal points and water supply reticulation network for human consumption and for industry especially in water-starved areas in Gaborone, other southern and western parts of Botswana. All these projects will require land, some of which is in the hands of individuals who will have to be compensated at market value for developments they have made on such land. The party’s plan is to conduct a comprehensive land audit to determine land ownership structure, use of land across the country and potential best use (tenure) of all land pockets in Botswana.  The findings will guide process on how to best allocate that land and for what purposes.  

“This, along with the long land application waiting lists, the masses of landless citizens and land-starved potential economic ventures, will form the basis for land management and land re-distribution as necessary. Our government will purchase land on a willing buyer-seller basis, and will not unlawfully repossess land.  Where government feels ordinary citizens have been unduly and unfairly prejudiced in land ownership, then authorities will pursue legal avenues to seek redress on behalf of concerned citizens,” UDC Vice President Ndaba Gaolathe explained to Sunday Standard in 2014. UDC has identified cities and towns as epicentres of the land crisis and land in such areas has a higher market value. Expert analysis is that the new law’s application of the market value principle is at odds with the way that tribal land is administered.

This is the complication: tribal land doesn’t belong to any individual but the entire community. Landboards administer land in particular areas on behalf of the community. As regards land, market value relates to highest price that a piece of land can sell for on an open market and it is a requirement that the seller must have exclusive proprietary rights over such land. What the new law does though is that it stipulates sale of commonly owned land at market value. “You can’t put on the market what is not yours and common property has no market,” says the source.

If this argument holds water, it would be interesting to find out how the alleged contradictions slipped through the quite elaborate drafting process at the Attorney General Chambers. Parliament also has a formal gate-keeping process that is superintended by MPs who include lawyers like the Leader of the Opposition, Duma Boko, and the Minister of Mineral Resources, Green Technology and Energy Security, Sadique Kebonang, and Maun West MP, Tawana Moremi. The market-value clause will also be a boon for the business of land speculators who do little more than buy land and play the wait game.